DEPARTMENT OF AGRICULTURE
[ 7 PA. CODE CH. 128 ]
Pesticides
[39 Pa.B. 5564]
[Saturday, September 26, 2009]Statutory Authority
The Department of Agriculture (Department) proposes to amend Chapter 128 (relating to pesticides) as set forth in Annex A. This proposal is adopted under the specific authority of the Secretary of Agriculture (Secretary) to promulgate appropriate regulations for the safe handling, transportation, storage, display, distribution and disposal of pesticides as set forth in section 7(b)(2) Pesticide Control Act of 1973 (act) (3 P. S. § 111.27(b)(2)).
Purpose
The purpose of this proposed rulemaking is to clarify, update and in some instances, delete, the existing pesticide regulations to ensure that the regulated community has a better understanding of the regulatory requirements and to maintain the Department's statutory mandate to protect the public health and welfare. Some of the Department's changes were also included to make the regulations gender neutral, bring the existing requirements into compliance with changes in Commonwealth law, and comply with additional restrictions put forth by the United States Environmental Protection Agency (EPA). Additional requirements set forth in the regulations were included for State registration of EPA-approved pesticides, especially in the areas relating to sales of restricted use pesticides and the identification of individuals seeking to sell or receive restricted use pesticides. These changes were added to address homeland security issues.
The Department also removed several sections from the regulations to ease the requirements on applicators and provide substantial cost savings to the Commonwealth, commercial and public pesticide application businesses.
Background
In developing and drafting the proposed amendments, the Department has continuously sought the input and comments from numerous industry entities including the Pesticide Advisory Board (PAB), members of the general public, members of the regulated community, as well as various pesticide trade groups, associations and organizations. These regulations have been the subject of significant discussions at PAB public meetings starting in 2002 through 2008. To date, the PAB continues to monitor the proposed rulemaking and its impact upon the regulated community and advise the Secretary accordingly.
Specifically, as part of its public outreach and input, the Department conducted direct mailing to over 650 persons on the Hypersensitivity Registry since December 2002. The Department mailed newsletters discussing the proposed regulations to 6,000 pesticide application businesses. The Department also conducted presentations regarding the proposed changes at numerous meetings attended by pesticide business owners and dealers, including, but not limited to, the annual meeting of the PA Christmas Tree Growers Association.
As a result of years of public and pesticide industry input, the Department has subsequently incorporated many of the suggested comments and other changes to the proposed rulemaking. The Department believes that the input from the industry has been vital in producing a reasonable and prudent proposal, designed to protect the public health and welfare of the citizens of this Commonwealth.
Summary of the Major Provisions of the Proposed Rulemaking
Subchapter A. General Provisions
Section 128.2 (relating to definitions) contains several new definitions, including constructive notification, dosage or rate of application, FIFRA, perimeter treatment, person, pesticide dealer manager, therapeutic swimming pool and worker protection standard. The definition of ''formulations'' was deleted.
Section 128.3(a) (relating to fees) clarifies that the annual fee for a pesticide dealer's license is $10 ''per location.'' Many pesticide dealers have more than one location, but for years have been able to utilize only one license. The Department believed it necessary to control the dealer's license by location.
Paragraph 1 creates a $15 annual fee for the new pesticide dealer manager's license per individual and paragraph 2 creates a $3 duplicate pesticide dealer manager's license fee.
Section 128.3(f)(3) (relating to examination fees) creates a $50 fee for the ''pesticide dealer manager's examination. Paragraph 5 previously numbers (3) and (4) are renumbered to (4) and (5) respectively.
Section 128.3(g) renumbered paragraphs (i) and (ii) for purpose of consistency.
Section 128.3(i) increases the annual fee to register pesticide products from $135 to $250. The last increase was in 2001 when the fee was changed from $100 to $135. The Department believes that this fee increase is reasonable and consistent with the fees other states charge to register pesticide products and in certain circumstances, the proposed fee increase is far less than that charged by New York ($300), California ($1000) and Louisiana ($700), for example. With respect to these fee increases, the Department has weighed the impact the increase will have on the regulated community with the increase in the operational costs associated with administering and regulating this industry.
Subchapter B. Licenses, Certificates and Permits
Pesticide Dealers
Section 128.10 (relating to license requirements for pesticide dealer) establishes new licensing requirements for businesses and individuals that resell or distribute restricted use pesticides. Each pesticide dealer must employ one person as a ''pesticide dealer manager.''
This section prohibits the pesticide dealer from distributing restricted use pesticides to persons without proof of proper identification.
Section 128.11 (relating to recordkeeping) changes the word ''sale'' to ''distribution'' and the recordkeeping information regarding distribution of restricted use pesticides. Individuals were not keeping proper records and documentation because the restricted use pesticide was not being technically sold, but distributed. The Department believes that this amendment will clarify the recordkeeping requirement.
Section 128.12 (relating to licensing of a pesticide dealer manager) establishes the parameters of a pesticide dealer manager's license, including age, qualifications, renewal and expiration.
Section 128.13 (relating to determination of competence) establishes the components of the written examination and the procedure for obtaining the pesticide dealer manager's license upon successful completion of the written examination.
Pest Management Consultants
Section 128.24 (relating to recordkeeping) deletes the requirement to maintain the ''formulation'' of pesticides in light of the deletion of the definition of ''formulation'' in § 128.2.
Pesticide Application Businesses
Section 128.31(c) (relating to license requirements) requires that the pesticide application business license number assigned to that business be applied in a contrasting color.
Section 128.31(d)(1) and (2) requires a pesticide application business to return voided applicator certificates or registered technician cards to the Department if those individuals are no longer employed by that business, or a written explanation why the applicator certificates or registered technician cards, or both, are unavailable.
Section 128.31(f) requires application businesses which include aerial applicators to provide the Department proof of compliance with Federal Aviation Administration regulations relating to agricultural aircraft operations.
Section 128.32 (relating to categories of business licenses) creates a new applicator category for sewer root control under the business category (D) and expands right-of-way to include ''weeds'' in category (E). This section deletes the industrial ''weeds'' category from category (F).
Section 128.33 (relating to assignment of work) changed the word ''permit'' to ''allow'' to avoid confusion.
Section 128.34 (relating to financial responsibility) raises the maximum allowable deductible amount from $1,000 to $2,500.
Section 128.35 (relating to recordkeeping) modifies, updates, clarifies and renumbers the recordkeeping requirements and provisions relating to pesticide applications by pesticide businesses. The Department believes that reordering and renumbering this section provides a more clear understanding of the pesticide businesses' responsibilities.
Commercial and Public Applications
Section 128.41 (relating to requirements for certification) clarifies the language of this section as it relates to commercial and public applicators. The proposed amendment also includes the use of pesticides which are otherwise deemed exempted from Federal registration. In subsection (b), the proposal deletes the references to private-residential swimming pools and adds a specific exemption for therapeutic pools.
Section 128.42 (relating to categories of commercial and public applicators) clarifies applicator Category 26—Sewer Root control (§ 128.32), which formally adopts and complies with the EPA's pesticide classification change. The proposed amendment combines pesticide applicator Categories 10 and 14 into one single category covering both areas of ''right-of-way and weed'' control. The proposed amendment also rewords the language of applicator categories 11, 12 and 15 with no change to the meaning.
Section 128.43 (relating to determination of competence) sets forth the identical criteria and areas of knowledge and competence for the written examination which is set forth in section 16.1 of the act (3 P. S. § 111.36a). The proposed amendment also requires proper proof of identity when taking a proctored examination and increases the time for completing the core examination plus at least one category from 180 days to 1 year.
Section 128.44 (relating to eligibility) establishes the minimum age a person is eligible for certification at 18 years of age. It also requires compliance with the provisions contained in 14 CFR Part 137 (relating to Agricultural Operations).
Section 128.45 (relating to recertification) updates the security issues in core training and requires that the trainer have at least 3 years experience as a certified applicator or equivalent education to conduct the training. The proposed amendment also provides for penalties for falsification of training or attendance at recertification courses.
Pesticide Application Technicians
Section 128.51 (relating to training program) reiterates the knowledge areas of training required by the act for pesticide application technicians.
Section 128.52 (relating to registration) provides that a pesticide application technician must be at least 16 years of age at the time of registration. The amendment also clarifies that the training period for pesticide application technicians must be at least 30-calendar days long.
Section 128.53 (relating to recordkeeping) requires, as a security measure, the retention of pesticide business employees' photo identification and other forms of valid identification. The proposed amendment also requires that identification records must be completed and made available to the Department no later than 24 hours after the training set forth in § 128.51.
Private Applicators
Section 128.61 (relating to determination of competence) reiterates the knowledge areas of training required by the act for private applicators, including security relating to pesticide use. The proposed amendment requires that private applicators must provide personal identification, including photo identification to the examination proctor.
Section 128.62 (relating to eligibility) provides that a private applicator must be at least 16 years of age to be eligible for a permit for the application of pesticides. The proposed amendment clarifies that a private applicator with an expired permit cannot use a restricted use pesticide, unless under the direct supervision of a certified applicator.
Section 128.63 (relating to recertification) sets forth the required core and category courses for the recertification of private applicators as specified in the act. The proposed amendment enumerates the penalties for the falsification of course attendance and course information.
Section 128.64 (relating to fumigation by a private applicator) clarifies that a private applicator must hold a permit in the proper fumigation category to purchase or use a restricted use fumigation product. The proposed amendment also clarifies that only materials approved by the Department may be used during an examination for private applicators. It also requires that the private applicator provide the examination proctor with proper and valid photo identification.
Section 128.65 (relating to recordkeeping) removes the requirement of ''formulation'' in a private applicator's recordkeeping and reorders the topics in this section for clarity. The proposed amendment requires that a restricted use pesticide application record must be completed in writing and made available to the Department within 24 hours after the application date.
Reciprocity
Section 128.71 (relating to general provision) allows for additional out-of-State obtained pesticide categories to be added to an existing reciprocal certification.
Section 128.72 (relating to procedure) requires that any person seeking reciprocity with the Commonwealth shall be at least 18 years of age and provide valid photo identification and proof of out-of-State residency.
Subchapter C. Prior Notification
Section 128.81 (relating to right-of-way application) clarifies and provides uniformity with other prior notification sections within the regulations. The language does not alter the meaning.
Section 128.82 (relating to nonagricultural specific site application) clarifies and provides uniformity with other prior notification sections within the regulations. The language does not alter the meaning.
Section 128.83 (relating to ornamental or turf application) of the existing regulations has been rescinded and reconstructed as § 128.85a. The Department moved this section to arrange the types of notification requirements together for purposes of consistency and uniformity.
Section 128.83a is new and contains provisions found in § 128.85 (relating to agricultural applications). The Department moved provisions of this section to arrange the types of notification requirements together for purpose of consistency and uniformity).
Section 128.84 (relating to nonagricultural area-wide application) of the proposed amendment clarifies and provides uniformity with other prior notification sections.
Section 128.85 is new and contains provisions previously found in existing § 128.83.
Section 128.86 (relating to constructive notification) has been rescinded in its entirety and moved to the definitions in § 128.2.
Section 128.87 (relating to prior notification by certified mail) has been deleted and reserved.
Section 128.88 (relating to recordkeeping) establishes that records created under this provision must be completed within 24 hours after the application date.
Subchapter D. Registration of Pesticides
Section 128.91 (relating to EPA approval required) completely modifies this section to allow for EPA approval or registration for standards for state registration. EPA's changes to pesticide registration requirements exempted some pesticides from the EPA registration process. The proposed amendment will clarify that those exempted pesticides are included within the Department's registration process.
Subchapter E. Miscellaneous
Section 128.101 (relating to reporting of significant pesticide accidents or incidents) adds the word ''incident'' to the reporting requirement and further defines the term significant pesticide accident or incident'' to provide clarity in the existing regulation. The proposed amendment will require the reporting to the Department of unexpected adverse effects resulting from a pesticide product even when applied consistent with the label directions.
Section 128.102 (relating to protected designated areas) expands the list of protected areas to include conservation areas and those areas containing endangered or threatened plant or animal species as those terms are defined by various statutes. The proposed amendment requires the Secretary to approve or deny within 60 days of the receipt of a request for a waiver to apply pesticides in an otherwise protected designated area.
Section 128.103 (relating to handling, transportation, storage, use and disposal of pesticides) eliminates references to open burning of pesticide containers and brings the regulation into compliance with the Department of Environmental Protection's air and solid waste regulations. The proposed amendment also clarifies the Department's ability to enforce the Federal Worker Protection Standard as set forth in 40 CFR Part 170.
Section 128.104 (relating to experimental use permits) clarifies that it is the responsibility of the registrant of a pesticide to notify the Department of an EPA-approved experimental use permit.
Section 128.106 (relating to additional responsibilities within school buildings) specifically includes ''school grounds'' in the existing prohibition from applying pesticides in common access areas within a school building when students are expected to be in that area for normal academic instruction or other related activities. The proposed amendment provide a list of exemptions to the pesticide application prohibition.
Section 128.107 (relating to providing information upon request) is a new provision which requires that all pesticide businesses and individuals maintain records regarding the sales, application, distribution, storage and transportation of pesticides and to provide those records to the Department upon request.
Subchapter F. Pesticide Hypersensitivity Registry
Section 128.111 (relating to the registry) allows the Department to distribute the hypersensitive registry by means other than mail. To reduce costs, the proposed amendment allows the Department to reduce the number of publications of the registry from four times per year to only two. The amendment changes the registry renewal date from January to October of each year.
Section 128.112 (relating to notification of hypersensitive individuals) allows additional means of notification to the pesticide hypersensitive individual by pesticide businesses. The proposed amendment clarifies existing exemptions to the notification requirement and specifically exempts notification regarding an application of a pesticide in the normal care and maintenance of a swimming pool.
Fiscal Impact
Commonwealth: The Department has determined that the proposal will have little or no adverse financial impact on the Commonwealth since all funds budgeted for the Program are derived from the Pesticide Restricted Account. The funds in that account are obtained from licensing, permitting and registration fees and civil penalties placed upon pesticide manufacturers, dealers and applicators doing business within this Commonwealth.
There will, however, be some cost savings in the amount of time needed to review and process Hypersensitivity Registries as a result of the reduced number of times the registry is published.
Political Subdivisions: The propoasl will impose no costs and have no adverse fiscal impact on political subdivisions.
Private Sector: The proposal will have a direct fiscal impact on the private sector. Specifically, pesticide manufacturers will have increased fees for the registration of their pesticide product. Pesticide dealers will also have an increased fee. The regulation will, however, provide some cost savings to the private sector by raising the insurance deductible levels.
General Public: The proposal will not have any fiscal impact on the general public.
Paperwork Requirements
The proposal would not appreciably increase the paperwork burden of the Department or other government units or citizens, including the regulated community since there are already paperwork record-keeping requirements in the existing regulations.
Effective Date
The proposed amendments will become effective upon final-form publication in the Pennsylvania Bulletin.
Subset Date
There is no sunset date for the regulations. The Department will review the efficacy of these regulations on an ongoing basis.
Contact Person
Interested persons are invited to submit written comments regarding the proposed amendments within 30 days following publication in the Pennsylvania Bulletin. Comments are to be submitted to the Department of Agriculture, Bureau of Plant Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Earl Haas.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 15, 2009, the Department submitted a copy of the proposed regulation and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed regulation within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act sets forth detailed procedures for review, prior to final publication of the regulations, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
DENNIS C WOLFF,
SecretaryFiscal Note: 2-149. (1) General Fund; Implementing Year 2008-09 is $0; 1st Succeeding Year 2009-10 is $2,000; 2nd Succeeding Year 2010-11 is $ 2,000; 3rd Succeeding Year 2011-12 is $ 2,000; 4th Succeeding Year 2012-13 is $2,000; 5th Succeeding Year 2013-014 is $2,000; 2007-08 Program—$3,163,000; 2006-07 Program—$2,684,000; 2005-06 Program—$2,706,000; (7) Pesticide Regulatory Account; (8) recommends adoption.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 128. PESTICIDES
Subchapter A. GENERAL PROVISIONS § 128.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Constructive notification—A person shall be deemed to have received notification if an adult residing in the same dwelling unit is so notified; orally, or by certified mail, or by a message left on an answering device activated by contacting the residence, including electronic mail or facsimile.
* * * * * Dosage or rate of application—The concentration of each pesticide, such as, a percent, ounces or quarts per gallon, pounds per 100 gallons, applied to a specific application site or target such as a crop, ornamental, cut stump, weed, animal, utility pole, reported as gallons per acre, pounds per 1,000 square feet, ounces per linear foot, ounces per cubic foot or ounces per animal.
EPA—The United States Environmental Protection Agency.
FIFRA—The Federal Insecticide, Fungicide, and Rodenticide Act of 1947 (FIFRA) (7 U.S.C. A. §§ 136—136y) .
[Formulation—The physical composition of the pesticide product; for example, ''dust,'' ''emulsifiable concentrate,'' ''wettable powder'' and ''granular'' are ways to describe the formulation of a pesticide product.]
* * * * * Perimeter treatment—
(i) The application of pesticide to the exterior of a structure to a maximum distance of 10 feet from the structure, unless the pesticide label clearly states otherwise, to prevent pests from invading the structure.
(ii) The term excludes tamper resistant bait stations.
Person—An individual, partnership, association, corporation, or any organized group of persons whether incorporated or not.
Pesticide dealer manager—An owner or individual employed by a licensed pesticide dealer who is responsible for storage and distribution of restricted use pesticides.
* * * * * Prior notification—Notification of a proposed application of pesticides given not more than 45 days and not less than 14 days prior to the date of application which contains the following information:
* * * * * (iii) The name, address and telephone number of [a person] the pesticide application business to whom requests for additional information should be directed.
(iv) A request for prior notification shall expire on December 31 in the year in which it is made.
* * * * * Swimming pool—An outdoor or indoor place used for bathing or for amateur, professional or recreational swimming, excluding single-family residential pools.
Therapeutic swimming pool—An indoor swimming pool or spa with a water temperature above 85°F used solely for rehabilitation or medically recommended treatment.
Under the direct supervision of—The term includes the following:
(i) For a commercial or public certified applicator, the application of a pesticide by a registered pesticide application technician acting with the instructions and under the control of a certified applicator who is responsible for the actions of the technician and who is available when needed; or the application of a pesticide by a nonregistered or noncertified [employe] person acting with the instructions and under the continuous voice and visual control of a certified applicator who is responsible for the actions of the [employee] person and physically present at the application site. The supervising applicator shall be certified in the appropriate category relating to the application.
* * * * * Worker Protection Standard—Includes all provisions of the Federal Worker Protection Standard as set forth in 40 CFR Part 170 (relating to worker protection standard).
§ 128.3. Fees.
(a) Pesticide dealer's license. The annual fee for a pesticide dealer's license is $10 per location. The fee for a duplicate pesticide dealer's license is $3.
(1) The annual fee for a pesticide dealer manager's license is $15 per individual.
(2) The fee for a duplicate pesticide dealer manager's license is $3.
* * * * * (d) Commercial applicator's certificate. The annual fee for the commercial applicator's certificate is $40. When the initial certification requires examination, no fee will be charged. The fee for a duplicate commercial applicator's certificate is $10. If an applicator is employed by more than one pesticide application business, a separate certificate and fee is required.
* * * * * (f) Examination fees. Examination fees are nonrefundable. The following examination fees, with payment made in advance, will be charged:
* * * * * (3) Pesticide dealer manager's examination—$50.
(4) Private applicator's examination—no charge.
[(4)] (5) Pest management consultant's examination—no charge except that a fee of $5 will be charged if an examination is requested on other than a regularly scheduled examination date.
(g) Registration fee for a pesticide application technician.
[(i)] (1) Commercial pesticide application technician. An annual registration fee of $30 will be charged to register a commercial pesticide application technician with the Department. The fee for a duplicate technician registration is $7.
[(ii)] (2) Public pesticide application technician. An annual registration fee of $20 will be charged to register a public pesticide application technician with the Department. The fee for a duplicate technician registration is $7.
* * * * * (i) Product registration. The annual fee to register a pesticide is [$135] $250.
PESTICIDE DEALERS § 128.10. Licensing requirements for pesticide dealer.
(a) A person may not purchase or attempt to purchase a restricted use pesticide for resale or distribution unless the person has a current and valid dealer license.
(b) Each pesticide dealer shall, at all times, employ at least one licensed pesticide dealer manager.
(1) A licensed pesticide dealer shall notify the Department in writing within 15 days of a change in its license information including the employment status of its licensed pesticide manager.
(2) A licensed pesticide dealer shall return to the Department within 15 days the voided pesticide dealer manager's card of an employee that is no longer employed by the pesticide dealer. If the pesticide dealer manager's card issued by the Department is not available, the pesticide dealer shall notify the Department in writing within 15 days of the employee's termination and provide an explanation of why the card is unavailable and the last known home address for the individual.
(c) A pesticide dealer may not distribute a restricted use pesticide unless the receiver provides proof of appropriate valid certification or license and proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the person's signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
§ 128.11. Recordkeeping.
(a) A pesticide dealer shall keep for each [sale] distribution of a restricted use pesticide a record containing the following information:
* * * * * (2) The brand name [and formulation] of the restricted use pesticide [that was purchased].
(3) The EPA registration number of the restricted use pesticide.
(4) The amount of the restricted use pesticide [that was purchased].
[(4)] (5) The date of the [purchase] distribution.
(6) A signature and identification information of the individual accepting delivery.
(b) A record required to be kept under this section shall be completed within 24 hours of the distribution in written or printable form, maintained for at least 3 years and shall be made immediately available to the Department upon request or immediately available to medical personnel in an emergency.
§ 128.12. Licensing of a pesticide dealer manager.
(a) The Department will issue a pesticide dealer manager license to an applicant of 18 years of age or older, upon verification of passing a written competency examination and payment of the appropriate fee. Renewal of the dealer manager license will be based on receipt by the Department of an application accompanied by the appropriate fee.
(b) If a pesticide dealer manager fails to renew his license for 1 or more years, the dealer shall reestablish eligibility as described in § 128.13 (relating to determination of competence).
(c) The license for a pesticide dealer manager will expire on December 31st of each year.
(d) For currently licensed pesticide dealer locations, the requirements for employment of a pesticide dealer manager will become effective _____ (Editor's Note: The blank refers to a date) 1 year from the effective date of adoption of this proposed rulemaking) (Editor's Note: The blank refers to a date). Initial examination fee will be waived until ____. (Editor's Note: The blank refers to a date 1 year from the effective date of adoption of this proposed rulemaking.) The requirements for a dealer manager will be immediately effective for pesticide dealer locations licensed on or after ____. (Editor's Note: The blank refers to the effective date of adoption of the proposed rulemaking)
§ 128.13. Determination of competence.
(a) At least one individual at each pesticide dealer location shall show competence in the storage and distribution requirements for restricted pesticides. Competence will be determined on the basis of a written examination. The examination will include the following:
(1) Safety.
(2) Labeling and label comprehension.
(3) Storage and security.
(4) Spill control.
(5) Transportation.
(6) Pesticide disposal.
(7) Recognition of pesticide poisoning symptoms and first aid.
(b) An application to take an examination shall be filed along with the appropriate fee with the Department at least 10-working days prior to the date of the examination.
(c) The examination will be proctored. Successful completion of the examination will entitle a person to hold a pesticide dealer managers license. An opportunity will be provided to retake an examination if a passing grade has not been achieved.
(d) The applicant shall provide to the proctor proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
(e) A person may not use reference materials during an examination unless approved by the Department or its designated agents.
(f) An application for a new pesticide dealer manager's license will be accepted throughout the calendar year. A full year's license fee will be required for a portion of a year, except that the Department may issue a license for an additional year when a new application is filed during the last 2 months of the license year.
PEST MANAGEMENT CONSULTANTS § 128.24. Recordkeeping.
(a) A pest management consultant shall keep for each instance in which he provides technical advice, supervision or aid or makes a recommendation to the user of a restricted use pesticide, the following information:
* * * * * (2) The brand name [and formulation] of the pesticides recommended to be used.
* * * * *
PESTICIDE APPLICATION BUSINESSES § 128.31. Licensing requirements.
* * * * * (c) A pesticide application business shall prominently display on every vehicle involved in the pesticide application phase of its business the license number assigned by the Department. The number [shall] must be in figures at least 3 inches high and [shall] be located on both sides of the vehicle at a readily visible location in a contrasting color.
(d) A licensed business shall notify the Department in writing within 15 days of a change in information in its application for licensing, or if it is no longer engaged in the application of pesticides.
(1) A licensed pesticide application business shall return to the Department within 15 days the voided applicator certification or registered technician card of an employee that is no longer employed by the pesticide application business.
(2) If the certification or registered technician card issued by the Department is not available, the pesticide application business shall notify the Department in writing within 15 days of the employees termination and provide an explanation of why the card is unavailable and the last known home address for the individual.
(e) A business that meets the definition of a commercial applicator as defined in section 4(6)(C) of the act (3 P. S. § 111.24(6)(C)) may not apply a pesticide without having a valid certified applicator physically present at the application site unless all application personnel on site are valid registered technicians.
(f) If the application business includes aerial applications, the applicant shall provide proof of compliance with the Federal Aviation Administration regulations as described in 14 CFR Part 137 (relating to agricultural aircraft operations).
§ 128.32. Categories of business licenses.
A commercial or public business shall identify in its application those business categories in which it desires to operate. A business shall employ for each business category in which it makes a pesticide application at least one applicator who is certified in a specific applicator category recognized under the general business category and shall limit its applications to those applicator categories in which it employs at least one certified applicator. The business categories are listed in paragraphs (1)—(10). The applicator categories recognized under a particular business category are listed under that business category.
* * * * * (4) Category (D)—Aquatic Pest Control.
09 Aquatic Pest Control
24 Swimming Pools
26 Sewer Root Control
(5) Category (E)—Right-of-Way Pest Control.
10 Right-of-Way and Weeds
(6) Category (F)—Industrial, Institutional, Structural and Health Related.
11 Household and Health Related
12 Wood Destroying Pests
14 [Industrial Weeds] (Reserved)
15 Public Health Vertebrate Pest Control
16 Public Health Invertebrate Pest Control
19 Wood Preservation
23 Park or [school] School Pest Control
* * * * * § 128.33. Assignment of work.
A pesticide application business may not [permit] allow an individual to make a pesticide application in an applicator category in which the individual has not been certified as an applicator or trained and registered as a technician.
§ 128.34. Financial responsibility.
(a) The Department will consider a certificate of insurance from an insurer or surety to be evidence of financial responsibility if the insurer or surety is licensed to do business under section [7 of the act of January 24, 1966 (P. L. 1509, No. 531) (40 P. S. § 1006.7), known as the Surplus Lines Insurance Law] 1605 of the Insurance Company Law of 1921 (40 P. S. §§ 991.1605), or otherwise permitted by Federal law or the Insurance Department to do business in this Commonwealth, if the following conditions are met:
* * * * * (4) The maximum deductible amount does not exceed [$1,000] $2,500 of the combined policy limits. If a pesticide application business has not satisfied the deductible amount in a prior claim, the policy may not contain a deductible amount.
* * * * * § 128.35. Recordkeeping.
(a) A pesticide application business shall keep for every application of a pesticide a record containing the following information:
(1) The date of application. For a pesticide requiring a reentry time, the date of application [shall] must include the hour completed. For continuous applications, such as swimming pools and chemigation, the record must include start and finish dates and the total amount of pesticide products used during that time period. For each addition of a pesticide to the system, an entry to the record is required.
* * * * * (3) The brand name [and formulation] of the pesticides used.
(4) The EPA product registration number.
[(4)] (5) The total amount of every pesticide used in pounds, ounces, gallons, liters, applied to a treated area.
[(5)] (6) The dosage or rate of application, of every pesticide used.
[(6)] (7) The [name] names and the [certificate] certification or technician's registration number [, whichever is applicable,] of each person making or supervising the application. When applicable the names of noncertified/nonregistered persons involved in the application.
[(7) The EPA product registration number.]
* * * * * (c) Pesticide product and application information shall be made immediately available to medical personnel in an emergency.
(d) A pesticide application record must be completed in written or printable form no later than 24 hours after the application date and made immediately available to the Department upon request.
[(c)] (e) A record required to be kept under this section shall be maintained for at least 3 years [and shall be made immediately available to the Department upon request or to medical personnel in an emergency].
COMMERCIAL AND PUBLIC APPLICATIONS § 128.41. Requirements for certification.
(a) A person is deemed to be a commercial or public applicator and required to be certified if one or more of the following criteria are met:
(1) A person[, whether or not he is a private applicator with respect to some uses,] who applies or supervises the application of a pesticide on an easement or on the property or premises of another[, including an easement] (other than his employer). This includes the use of a pesticide exempted from Federal registration under § 128.91 (relating to EPA approval required).
* * * * * (b) The following are exceptions to subsection (a)(3)(viii):
* * * * * (2) The use of general use pesticides [by an owner or resident] in the care and maintenance of a swimming pool at a private single-family residence.
(3) The use of a general use pesticide by an owner or employee in the care or maintenance of a swimming pool used solely as a therapeutic swimming pool.
§ 128.42. Categories of commercial and public applicators.
A commercial or public applicator applying or supervising the application of a pesticide shall be certified in one or more of the following applicator categories:
* * * * * (10) Right-of-way and weeds—The use of a pesticide to maintain a public road, an electrical power line, a pipeline, a railway right-of-way or a similar type of area or to control vegetation around a structure, such as an oil tank, utility sub stations, an industrial railway siding, an airport, a parking lot, a fence or an industrial building or for the control of an invasive weed species in other areas.
(11) Household and health related—The use of a pesticide in, on or around a food handling establishment, a human or nonagricultural animal dwelling, an institution such as a school or hospital, an industrial establishment, a warehouse, a grain elevator and other types of structures whether public or private. The application of a pesticide to protect a stored, processed or manufactured product is also included. The use of a [fumigant, except where applied out-of-doors to a rodent burrow which does not lead into a dwelling or other structure, and except in the case of termite or other structural pest control is included. The treatment of an emergence crevice, an ant runway or a surface to control carpenter bees or the surface application of a pesticide to a wooden box, furniture or lumber is included] rodenticide or avicide is permitted in this category. The use of a pesticide in outdoor perimeter treatments to control pests, which may infest the structure, is included.
(12) Wood destroying pests—The use of a pesticide to control or prevent termites, powder post beetles or other wood destroying pests infesting a residence, school, hospital, store, warehouse or other structures or structural components, including wooden objects contained in or associated with the structure and [an] the area adjacent to those structures.
* * * * * (14) [Industrial weeds—The use of a pesticide to control vegetation around a structure, such as an oil tank, an industrial railway siding, an airport runway, a parking lot, a fence or an industrial building
(15)] Public health vertebrate pest control—The use of a pesticide to manage and control a vertebrate pest such as rodents or birds, affecting public health.
[(16)] (15) Public health invertebrate pest control—The use of a pesticide to manage and control an invertebrate pest affecting public health.
[(17)] (16) Regulatory pest control—The use of a pesticide to control an organism designated by the Commonwealth or the Federal government to be a pest requiring regulatory restrictions or control procedures to protect man or the environment.
[(18)] (17) Demonstration and research pest control—The use of a pesticide to demonstrate to the public the proper method of application for a pesticide and the use of a pesticide in research such as that undertaken by an extension specialist, county agent or vocational agriculture teacher.
[(19)] (18) Wood preservation—The use of a pesticide in wood impregnation to control or prevent fungi, insects, bacteria, marine borers and other wood destroying pests and includes pole treating or restoration and the use of a fumigant for in-place treatment of utility poles.
[(20)] (19) Commodity and space fumigation—The use of a fumigant in or to a structure, trailer, railcar, onboard ship, or in any type of fumigation chamber, such as under a tarpaulin for the control of pests in stored or in-transit commodities.
[(21)] (20) Soil fumigation—The application of a fumigant to a soil environment.
[(22)] (21) Interior plantscape—The use of a pesticide to control plant pests when the soil or plant to be treated is located within an enclosed structure.
[(23)] (22) Park or school pest control—The use of a pesticide in a campground or recreational area of a public or private park or on school property.
[(24)] (23) Swimming pools—The use of a pesticide in the care and maintenance of swimming pools.
[(25)] (24) Aerial applicator—The use of a pesticide applied by aircraft to any crop or land area. Applicators in this category shall comply with § [128.83] 128.85 (relating to ornamental or turf application) when making ornamental or turf applications.
(25) Sewer root control—The use of a pesticide to control vegetative growth in public and private sewage collection and distribution lines.
§ 128.43. Determination of competence.
(a) For each of the categories [listed] in § 128.42 (relating to categories of commercial and public applicators), competence in the use and handling of pesticides [shall] will be determined on the basis of a written examination. The examination will include the following:
(1) Areas of knowledge and competence set forth [at] in section 16.1 of the act (3 P. S. § 111.36a).
(i) Identification of pests to be controlled and the damages caused by the pests.
(ii) The appropriate control measures to be used, including pesticides.
(iii) The hazards that may be involved in applying pesticides, to protect people and the environment.
(iv) The proper use of pesticide application equipment, including calibration and dosage calculations.
(v) Protective clothing and respiratory equipment required during application and handling of pesticides.
(vi) General precautions to be followed in cleaning and maintaining equipment used.
(vii) Transportation, storage, security and disposal of pesticides.
(viii) Applicable Federal and State pesticide laws and regulations.
* * * * * (c) An examination [shall] will be proctored. [A person may use approved reference sources during an examination.] The applicant shall provide to the proctor proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address. Only reference materials approved by the Department may be used during the examination. Successful completion of the core area and, successful completion of part two of the examination in a specific category will entitle a person to certification in that category. A person desiring certification for additional categories will be required to be examined for each additional category. An opportunity will be provided to retake an examination when a passing grade has not been achieved.
(d) If a person successfully completes only one part of the two-part examination, successful completion of the remaining part of the examination shall be obtained within [180-calendar days] 1 year from the date the initial part of the examination was successfully completed.
(e) An application to take an examination shall be filed along with the appropriate fee with the Department [within] at least 10-working days prior to the date of the examination.
* * * * * § 128.44. Eligibility.
(a) A person is eligible for certification upon reaching 18 years of age and fulfilling the requirements under §§ 128.41—128.43 (relating to requirements for certification; categories of commercial and public applicators; and determination of competence). In addition to the requirements for a commercial applicator's certification, an aerial applicator shall have a current commercial agricultural aircraft operator's certificate issued by the Federal Aviation Administration [under] or show evidence of compliance with 14 CFR [§ 137.19(a) (relating to certification requirements)] Part 137 (relating to agricultural aircraft 0perations).
(b) Within 12 months of becoming eligible to be certified as a commercial applicator, a person shall file with the Department an application for certification. A person who fails to file an application within this 12-month period will lose certification eligibility and shall again establish eligibility in accordance with §§ 128.41—128.43 An application for initial certification will be accepted from an eligible person throughout the year. A certificate [shall] will expire on September 30 following the date of application, except that the Department may issue a certificate for an additional year when an application is initially filed during the last 2 months of the certification year.
* * * * * (e) If a person fails to complete delinquent recertification credits within 1 year from the triennial certification expiration date or fails to renew certification for any reason during that time period, the person is required to [meet] reestablish eligibility by meeting the requirements of §§ 128.3, 128.43 and 128.44 (relating to fees; determination of competence; and eligibility).
§ 128.45. Recertification.
(a) At intervals of 3 years, a certified commercial or public applicator shall provide evidence of having received current update training in technology relating to pesticides in the specific categories in which [he] the applicator is certified to maintain certification. Training will be divided into core and category specific areas as follows:
* * * * * (b) Recertification credits will be given on the basis of attendance at [meetings] courses or other appropriate training approved by the Department. Training will be evaluated by the Department and assigned credits. A person is required to meet the credit requirements in the ''Pennsylvania State Plan for Certification of Pesticide Applicators.'' This plan has been filed with and approved by the EPA in accordance with [the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.A. §§ 136—136y FIFRA)] Records of training will be maintained by the Department and a yearly statement will be sent to each certified commercial or public applicator describing credits obtained and credits due to meet recertification standards.
(c) Training will be approved based on the following criteria:
* * * * * (3) Sponsors of recertification training shall submit a written request for course approval to the Department's regional office for the region in which the meeting will be held. A request to approve out-of-State training shall be submitted to the Department of Agriculture, Bureau of Plant Industry, [Agronomic Services] Health and Safety Division, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408. A request shall be submitted at least 15 working days prior to the training date.
(4) A request for training approval [shall] meet include the following information:
(i) The name, address and phone number of the contact person who is coordinating the meeting.
* * * * * (iii) The date and time of the meeting.
(iv) A listing of the [speakers] trainers, subject matter and time allotted to each subject.
(v) The trainer has at least 3 years experience as a certified applicator in the appropriate category or has submitted documentation of other qualifications to serve as a trainer such as educational background.
[(v)] (vi) A statement of whether the meeting is opened to the public and if there is a charge to attend.
* * * * * (9) Falsification by a pesticide business or other course sponsor of information required under this subsection may result in a warning, a fine, suspension and the withdrawal of course [approval] approvals as set forth in this section.
(10) A person may not falsify attendance or that of another person's attendance at a recertification meeting. Falsification of attendance at a recertification course by a person may result in a warning, a fine or suspension or revocation of the applicator's certification and require recertification as required in §§ 128.3 and 128.61 (relating to fees; determination of competence).
PESTICIDE APPLICATION TECHNICIANS § 128.51. Training program.
(a) A pesticide application technician shall obtain instruction in, and possess adequate knowledge of, the proper use and handling of pesticides. The training program [shall] must include:
(1) Those areas of knowledge described in section 16.2 of the act (3 P. S. § 111.36b).
(i) Identification of pests relative to job responsibility.
(ii) The proper use of pesticides and use of application equipment, including calibration and maintenance equipment used on the job.
(iii) Protective clothing and respiratory equipment required during the application and handling of pesticides.
(iv) Transportation and disposal of pesticides used in and around the workplace.
(v) Applicable State and Federal regulations as they affect the work assignments.
* * * * * § 128.52. Registration.
(a) A business shall submit to the Department [by first class mail, postage prepaid, on a form provided by the Department,] a list of persons it intends to register as technicians. The postmarked date or date of receipt will indicate the beginning of a training period to consist of at least 30 calendar days of training.
* * * * * (g) A technician shall be 16 years of age or older years of age at the time of application for registration.
§ 128.53. Recordkeeping.
* * * * * (b) The pesticide application business shall keep as part of its records proof of personal identification by retaining copies of a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
(c) A record required to be kept under this section shall be maintained for at least 3 years and completed in written or printable form no later than 24 hours after the training and shall be made immediately available to the Department upon request.
PRIVATE APPLICATORS § 128.61. Determination of competence.
(a) Competency in the use and handling of restricted use pesticides by a private applicator will be determined on the basis of a proctored written examination. The examination will include the following:
(1) Areas of knowledge described [at] in section 17.2 of the act (3 P. S. § 111.37b).
(i) Labeling and label comprehension.
(ii) Safety and health.
(iii) Environmental protection.
(iv) Pests.
(v) Pesticides.
(vi) Integrated pest management.
(vii) Equipment.
(viii) Application techniques and technology.
(ix) Laws and regulations.
(2) Transportation, storage, security and disposal.
* * * * * (c) Only reference materials approved by the Department may be used during the examination.
(d) The applicant shall provide to the proctor proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
§ 128.62. Eligibility.
(a) A private applicator will be eligible for a permit upon reaching 16 years of age or older and fulfilling the requirements of § 128.61 (relating to determination of competence) and subsection (b).
(b) Within 1 year of fulfilling the requirements of § 128.61, a private applicator shall file with the Department an application for a permit accompanied by the appropriate fee. A person who fails to file within this 1 year period shall again establish eligibility under § 128.61.
* * * * * (d) A private applicator with an expired permit may not make an application of a restricted use pesticide (unless the individual is working under the direct supervision of a certified applicator).
§ 128.63. Recertification.
(a) At intervals of 3 years, a private applicator shall have accumulated credits as a result of having received update training approved by the Department in technology relating to the proper and safe use of pesticides to continue as a permitted private pesticide applicator. Training will be divided into core and category specific areas as specified in § 128.45(a) (relating to recertification).
(1) Core.
(i) Safety and health.
(ii) Labeling and label comprehension.
(iii) Environmental protection.
(iv) Equipment use, calibration and dosage calculations.
(v) Protective clothing and respirator equipment.
(vi) Cleaning and maintaining equipment.
(vii) Transportation, storage, security and disposal.
(viii) Applicable State and Federal laws.
(2) Category specific.
(i) Identification of pests.
(ii) Appropriate control measures.
(iii) Integrated pest management.
(b) Recertification credits will be given on the basis of attendance at meetings or other appropriate training approved by the Department. Training will be evaluated by the Department and assigned credits. A person is required to meet the credit requirements in the Pennsylvania State Plan for Certification of Pesticide Applicators. This plan has been filed with and approved by the EPA under [the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.A. §§ 136—136y)] FIFRA. Records of training will be maintained by the Department and a yearly statement will be sent to each private applicator describing credits obtained and credits due to meet recertification standards. Training will be approved as described under § 128.45(c).
(c) If a private applicator fails to renew his permit by the date of expiration, renewal requires the following:
* * * * * (2) Completion of the examination requirements as described in §§ 128.3, 128.61 and 128.62 (relating to fees; determination of competence; and eligibility) by the applicator if the due recertification credits are not completed within 1 year from the expiration date of the permit or the permit is expired for more than 1 year for any reason.
(d) Falsification by a pesticide business or other course sponsor of information required under this section may result in a warning, fine and suspension or the withdrawal of course approvals as set forth in § 128.45 and this section.
(e) A person may not falsify attendance or that of another person's attendance at a recertification meeting. Falsification of attendance at a recertification course by a person may result in a warning, fine or suspension or revocation of the applicator's certification and require recertification as required in § 128.61.
§ 128.64. Fumigation by a private applicator.
(a) A private applicator shall hold a permit in the proper fumigation category in order to purchase or attempt to purchase or use a restricted use fumigant product.
(b) In addition to the requirements in § 128.61 (relating to determination of competence), a private applicator using [structural,] commodity and space, or soil fumigants shall demonstrate competence in the proper and safe use of these pesticides. Competency shall be demonstrated by passing a proctored written examination specifically relating to each type of fumigant the applicator intends to use. Only reference materials approved by the Department may be used during the examination. The applicant shall provide to the proctor proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card, or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
[(b)] (c) A special permit will be issued, relating to fumigation, and will be valid for a 3-year period. A fee will not be charged for this special permit. A special permit will not be issued for the use of a fumigant unless the applicant has a private applicator's permit.
[(c)] (d) Recertification requirements shall be met through attendance at approved meetings and [shall] consist of at least two credits of category specific education relating to the appropriate area of fumigation in which the applicator is certified. The credits obtained by a private applicator to meet the requirements of this subsection may also be used to meet the requirements of § 128.63 (relating to recertification).
§ 128.65. Recordkeeping.
(a) A private applicator shall keep for each application of a restricted use pesticide a record containing the following information:
(1) The date of application. For a restricted use pesticide requiring a reentry time, the date of application [shall] must include the hour completed.
* * * * * (3) The size of the area treated.
[(3)] (4) The brand name [and formulation] of every restricted use pesticide used.
(5) The EPA product registration number.
[(4)] (6) The total amount of every restricted use pesticide used in pounds, ounces, gallons, liters, applied to a treated area.
[(5)] (7) The dosage or rate of application, of every restricted use pesticide used.
[(6)] (8) The names and [, when applicable,] the permit or certification numbers of the persons making or supervising the application. When applicable, the names of the noncertified applicators acting, under the direct supervision of the private applicator, shall be recorded.
[(7) The EPA product registration number.
(8) The size of the area treated.]
(b) A record required to be kept under this section shall be maintained for at least 3 years [and shall be made immediately available to the Department upon request or immediately available to medical personnel in an emergency].
(c) Pesticide product and application information shall be made immediately available to medical personnel in an emergency.
(d) A restricted use pesticide application record shall be completed in written or printable form no later than 24 hours after the application date and made immediately available to the Department upon request.
RECIPROCITY § 128.71. General.
A person who is not a resident of this Commonwealth, but who has a valid license, certificate or permit from another state, may obtain an appropriate Pennsylvania license, certificate or permit if the state in which [he] the person is licensed has a reciprocal agreement with the Commonwealth under section 22 of the act (3 P. S. § 111.42). A license, certificate or permit [shall] will be issued under this section only for the initial period of issuance for that eligible category.
§ 128.72. Procedure.
A person desiring a license under § 128.71 (relating to general) shall submit to the Department a properly completed application, the appropriate fee and evidence of financial responsibility as required along with a copy of the person's current license, certificate or permit, proof of having reached 18 years of age, out-of-State residency and proof of personal identification by presenting a photo identification document issued by an agency of the United States Government or affiliated jurisdiction (that is, state or territory), such as a driver license, valid passport, military identification card or an immigration card; or at least two nonphoto identification documents one of which must be a United States Government issued document bearing the persons signature, such as a Social Security card. The other nonphoto identification documents must identify the holder by name and address.
Subchapter C. PRIOR NOTIFICATION § 128.81. Right-of-way application.
* * * * * (b) Alternative form of notification. In lieu of the notification requirements described in subsection (a), an applicator may give prior notification [orally or by certified mail to every] by constructive notification to a person residing in [a] every dwelling unit on land contiguous to the restricted use pesticide application site. [This subsection does not apply to an aerial application of a restricted use pesticide.]
(c) Additional information.
(1) At least 7 days prior to the proposed application date, a person residing in a dwelling on land contiguous to the application site may request additional information from the [person designated to receive requests for additional information] pesticide application business. Upon the request, the [applicator] pesticide application business shall make constructive notification and provide the following additional information at least 12 hours prior to the time of application:
* * * * * (2) Upon written request the [designated person] pesticide application business shall, within 10 days of receiving a request under this subsection, provide a copy of the label for every restricted use pesticide used or to be used.
* * * * * § 128.82. Nonagricultural specific site application.
(a) Prior notification required. A commercial/public applicator may not make a specific site application of a restricted use pesticide without first giving prior notification [orally or by certified mail to every] by constructive notification to a person residing in [a] every dwelling unit on land contiguous to the application site.
(b) Additional information.
(1) [Upon request made by a person entitled to notice at] At least 7 days prior to the proposed application date [to the person designated to receive requests for additional information, the applicator shall], a person residing in a dwelling on land contiguous to the application site may request additional information from the pesticide application business. Upon the request, the pesticide application business shall make constructive notification and provide the following additional information at least 12 hours prior to the time of application.
* * * * * (2) Upon written request the [designated person] pesticide application business shall within 10 days of receiving a request under this subsection provide a copy of the label for every restricted use pesticide used or to be used.
(c) Exceptions. The following types of application do not require prior notification:
* * * * * (4) An application of a restricted use pesticide that is injected into trees or utility poles.
§ 128.83. [Ornamental or turf application] (Reserved).
[(a) Notification.
(1). A pesticide business that meets the definitions of category 06 (ornamental and shade trees) or 07 (lawn and turf) of § 128.42 (relating to categories of commercial and public applicators) regarding general use pesticides shall at least 12 hours prior to the time of application provide every person residing in a dwelling on land contiguous to the application site with the following information:
(i) The proposed date and time of application.
(ii) The brand name of every pesticide to be applied including the EPA registration number.
(2) Within 10 days of receiving a request , the pesticide application business shall provide a copy of the label for every pesticide to be used.
(b) Exceptions.—A person is not entitled to notification under subsection (a) unless the person makes a written request at least 7 days prior to the proposed date of application.
(c) Premises sharing mutual border. The request described in subsection (b) shall list by street address premises which share a mutual border with the premises owned by the person making the request.]
§ 128.83a. Agricultural application.
(a) Prior notification required. A commercial/public applicator may not apply a restricted use pesticide for an agricultural purpose without first giving prior notification in the form of a notice published in two newspapers of general circulation in the affected area.
(b) Additional information.
(1) At least 7 days prior to the proposed application date, a person residing in a dwelling on land contiguous to the restricted use pesticide application site may request additional information from the pesticide application business. Upon the request, the pesticide application business shall make constructive notification at least 12 hours prior to the time of application, and provide the following additional information:
(i) The proposed date and time of application.
(ii) The brand name of every restricted use pesticide to be applied including the EPA registration number.
(iii) The business name, address, and phone number.
(2) The person making a request under this subsection shall identify in the request the name and address of every person operating agricultural land which shares a common border with property resided on by the person making the request.
(3) Upon written request, the pesticide application business shall, within 10 days of receiving a request under this subsection, provide a copy of the label for every restricted use pesticide used or to be used.
(c) Alternate forms of notification.
(1) In lieu of requirements in subsection (a) a pesticide application business may give constructive notification to a person residing in every dwelling unit on land contiguous to the restricted use pesticide application site at least 18 hours prior to the time of application. The pesticide application business shall provide the proposed date and location of the application, the brand name of every restricted use pesticide to be applied including the EPA registration number and the business name, address and phone number.
(2) In lieu of requirements in subsection (a), an applicator may post placards at usual points of entry to the application site and at the borders with adjoining properties owners at least 18 hours prior to the time of application. This placard must remain posted until the conclusion of any restricted reentry time listed on the pesticide label. The placards must be at least 8 1/2 inches by 11 inches in size and be printed with the following words; ''Public Notice of Pesticide Application'' and contain the pesticide application business's name, address, phone number and the brand name of every restricted use pesticide to be applied including the EPA registration number.
(d) Exceptions. An application of a restricted use pesticide does not require prior notification where applied directly below the soil surface, except where a well or spring is located within 25 feet of the application site or a soil fumigant is used.
§ 128.84. Nonagricultural area-wide application.
* * * * * (b) Additional information.
(1) At least 7 days prior to the proposed application date, a person residing in a dwelling on land contiguous to the application site may request additional information from [a person designated to receive requests for additional information] the pesticide application business. Upon the request, the [applicator] pesticide application business shall make constructive notification and provide the following information at least 12 hours prior to the time of application.
* * * * * (iii) The business name, address and phone number.
(2) [Within] Upon written request, the pesticide application business shall within 10 days of receiving a request under this subsection, [the designated person shall] provide a copy of the label for every restricted use pesticide used or to be used.
§ 128.85. [Agricultural application] (Reserved).
[(a) Prior notification required. A commercial/public applicator may not apply a restricted use pesticide for an agricultural purpose without first giving prior notification in the form of a notice published in two newspapers of general circulation in the affected area.
(b) Additional information.
(1) At least 7 days prior to the proposed application date, a person residing in a dwelling on land contiguous to the restricted use pesticide application site may request additional information from a person designated to receive requests for additional information. Upon the request, the applicator shall at least 12 hours prior to the time of application, provide the following additional information:
(i) The proposed date and time of application.
(ii) The brand name of every restricted use pesticide to be applied including the EPA registration number.
(2) Within 10 days of receiving a request under this subsection, the designated person shall provide a copy of the label for every restricted use pesticide to be used.
(3) The person making a request under this subsection shall identify in his request the name and address of every person operating agricultural land which shares a common border with property owned by the person making the request.
(c) Use of placards. In lieu of requirements contained in subsections (a) and (b), an applicator may give prior notification orally or by certified mail to every person residing in a dwelling on land contiguous to the restricted use pesticide application site or may post placards around the application site at least 18 hours prior to the time of application. If the applicator uses placards, the placards shall contain the information required by this section for prior notification.
(d) Exceptions. An application of a restricted use pesticide does not require prior notification where applied directly below the soil surface, except where a well or spring is located within 25 feet of the application site or a soil fumigant is used.]
§ 128.85a. Ornamental or turf application notification.
(a) Notification.
(1) A person shall submit a written request for notification of lawn, turf, ornamental, or shade tree pesticide applications, applicator categories 06 or 07 as described in § 128.42 (relating to categories of commercial and public applicators) to the pesticide application business for notification of pesticide applications by that business.
(i) This written request for notification is limited to and must list by owners name and street address of the premises sharing a mutual border with the residence of the person making the request.
(ii) The notification requirement becomes effective 7 days following receipt of the request by the pesticide application business.
(2) Upon receiving a written request at least 7 days prior to the application date, a pesticide business making lawn, turf, ornamental or shade tree applications shall make constructive notification of applications on contiguous lands at least 12 hours prior to the application providing the following information:
(i) The proposed date and time of application.
(ii) The brand name of every pesticide to be applied including the EPA registration number.
(iii) The business name, address and phone number.
(3) If specifically requested in writing, the pesticide application business shall within 10 days of receiving a request provide a copy of the labels for every pesticide used or to be used.
(b) Expiration of request. A request for notification made under this subchapter shall expire on December 31 in the year in which it is made.
(c) Records. The pesticide application business shall keep records of all requests for notification and records of notifications made for 3 years.
(d) Exceptions. An application of a pesticide to a tree by means of injection is not subject to notification.
§ 128.86. [Constructive notification] (Reserved).
[A person shall be deemed to have received notification under this subchapter if an adult residing in the same dwelling is so notified.]
§ 127.87. [Prior notification by certified mail] (Reserved).
[If this subchapter authorizes an applicator to give prior notification by certified mail, the prior notification shall be effective upon receipt.]
§ 128.88. Recordkeeping for prior notification.
(a) The [applicator] pesticide application business shall keep, for each occasion in which prior notification is required, a record containing the following information:
* * * * * (4) A copy of correspondence relating to prior notification or additional information.
(b) A record required to be kept under this section shall be completed in written or printable form no later than 24 hours after the application date, maintained for at least 3 years and shall be made immediately available to the Department upon request.
Subchapter D. REGISTRATION OF PESTICIDES § 128.91. EPA [registration] approval required.
[Only a pesticide with an approved EPA registration will be accepted for registration by the Department.]
(a) Only pesticides which have been approved by EPA for registration under section 3 of FIFRA (7 U.S.C.A. § 136a) or are permitted to be distributed under a Federal exemption under section 18 or 25(b) of FIFRA (7 U.S.C.A. § 136p and 136w(o)may be registered by the State.
(b) State registration of products sold only under an emergency exemption approved under section 18 of FIFRA will remain in effect only for the period specified by the EPA in granting approval of an exemption, and will require the registrant to provide to the State all information required under 40 CFR 166.32 (relating to reporting and recordkeeping requirements for specific, quarantine and public health exemptions).
(c) Pesticide registration is required for all pesticides exempted from regulation under FIFRA under 40 CFR 152.25(f) (relating to exemptions for pesticides of a character not requiring FIFRA regulation). State registration of products under this exemption will be permitted only when the product labeling, composition, efficacy and risks are consistent with the terms for Federal exemption.
Subchapter E. MISCELLANEOUS § 128.101. Reporting of pesticide significant accidents or incidents.
* * * * * (b) [An applicator, a pesticide application technician or another person] A person after becoming aware of a significant pesticide accident or incident or who has knowledge of a significant pesticide accident or incident shall immediately report it to the Department.
(c) As used in this section, the term ''significant pesticide accident or incident'' means an accident or incident involving a pesticide which [creates a danger to human beings or results in damage to plant or animal life] requires a person to obtain medical treatment, results in illness requiring veterinary treatment of any wild or domestic animal, results in the unintended death of a human or animal, pollutes the waters of this Commonwealth, or causes damage which results in an economic loss of plants, organisms, structures or stored commodities.
(d) Regulated person who following a pesticide application becomes aware of an unexpected adverse effect resulting from the pesticide product when applied in a manner consistent with the label directions shall contact the Department and provide information on the application and its effects.
(e) This section does not supersede the reporting procedures of other statutes or the regulations promulgated thereunder.
§ 128.102. Protected designated areas.
(a) An application of a restricted use pesticide within 100 feet of certain publicly-owned or designated lands will not be permitted unless a waiver is granted by the Secretary. Lands affected by this restriction include:
(1) State forest land designated [''Natural Areas and Wild Areas.''] as a Conservation Area under 17 Pa. Code Chapter 44 (relating to conservation areas) or as a natural area or Wild Area under 17 Pa. Code Chapter 27 (relating to State Forest natural areas—statement of policy), and State park land designated as a conservation area under 17 Pa. Code Chapter 44 (relating to conservation areas) or as a Natural Area under 17 Pa. Code Chapter 17 (relating to state parks natural areas—statement of policy).
(2) Areas containing endangered or [rare organisms] threatened plant or animal species. These [organisms] species are [identified at] listed in 17 Pa. Code [Chapter 45 (relating to conservation of Pennsylvania native wild plants); and 58 Pa. Code Chapters 75 and 133 (relating to endangered species; and wildlife classification)] §§ 45.12 and 45.13 (relating to Pennsylvania endangered; and Pennsylvania threatened); fish identified in §§ 75.1. and 75.2 (relating to endangered species; and endangered species); and 58 Pa. Code Chapter 133; § 133.21. (relating to Pennsylvania classification of birds as Endangered and Threatened), § 133.41. (relating to Pennsylvania classification of mammals as Endangered and Threatened).
* * * * * (d) The Secretary will approve or deny the application within 60 days of receipt of the application.
§ 128.103. Handling, transportation, storage, use and disposal of pesticides.
(a) A person may not use, handle, transport, store, dispose, display or distribute a pesticide in a manner that endangers man or [his] the environment or contaminates food, feed, feed supplements, medications, fertilizers, seed or other products that may be handled, transported, stored, displayed or distributed with the pesticides or otherwise is in conflict with State or Federal laws or regulations.
(b) A person may not use, or cause to be used a pesticide inconsistent with its labeling (as defined in § 128.2 (relating to definitions)). A pesticide label containing an advisory instruction concerning the use of the pesticide being an environmental hazard shall be considered by the Secretary as a further restriction on the pesticide's use.
(d) A person may not dispose of, store or receive for disposal or storage a pesticide, pesticide container or pesticide container residue in a manner that does one or more of the following:
* * * * * (2) [Causes or allows the open dumping of pesticides or pesticide containers. Open burning by the owner of small quantities of combustible containers that do not exceed 50 pounds is exempt if the pesticide residue does not contain organic mercury, chlorates, lead, cadmium or arsenic compounds and the Commonwealth or local regulations permit the burning. When the burning takes place, regard shall be given to wind direction in relation to the protection of crops, animals and people from pesticide vapors created through burning.
(3)] Causes or allows dumping of pesticides in [a stream, river, pond, sewer or lake] sewers or surface waters of this Commonwealth, except in conformance with permits issued [jointly] by the Department of Environmental Protection [and], the Fish and Boat Commission, or other Commonwealth agencies having jurisdiction regarding water pollution.
[(4)] (3) Violates an applicable State or Federal [pollution control standard] acts and regulations.
[(e) A person shall dispose and store pesticides, pesticide containers and pesticide container residue in accordance with acts and regulations administered by the EPA and the Department of Environmental Protection.]
(4) Causes or allows the open dumping of pesticides or pesticide containers. All pesticide containers shall be triple rinsed or equivalent pressure rinsed and free of all visible pesticide residues, emptied and punctured prior to disposal. Plastic pesticide containers should be offered for recycling or reconditioning where programs are available. If not, they may be disposed of in a permitted sanitary landfill, or a permitted commercial incinerator.
(e) A person may not use, or cause to be used, a pesticide inconsistent with its labeling. A pesticide containing an advisory instruction concerning the use of the pesticide subject to the Federal Worker Protection Standard (See 40 CFR Part 170 (relating to worker protection standard)) will be considered by the Secretary as a further restriction on the pesticide's use.
(f) A [person] business may not directly apply pesticides to the property of another without first obtaining permission of the owner, or occupant having care, custody or control of the property to do so, except in the case of easements or right-of-ways or when done under the direction of a governmental entity to protect the health and welfare of the public.
* * * * * § 128.104. Experimental use permits.
The Department shall be notified by the registrant prior to the use in this Commonwealth of a pesticide with an approved EPA experimental use permit. Notification [shall] must include copies of the EPA approval letter, a properly completed product label as defined in 40 CFR 172.6 (relating to labeling) and a list of the participants and cooperators involved in the program.
§ 128.106. Additional responsibilities [within school buildings] relating to schools.
(a) General. A pesticide [other than a disinfectant or sanitizer] may not be applied in a common access area within a school building or on school grounds when students are expected to be in the common access area for normal academic instruction or organized extracurricular activities within 7 hours following the application. The applicator shall also comply with reentry time restrictions contained on the pesticide label, whichever is greater and the requirements of section 772.2 of the Public School Code of 1949 (24 P. S. § 7.772.2) (regarding notification of pesticide treatments at schools).
(b) Exemptions. The following type of pesticide applications are exempt from this section.
(1) Disinfectants and sanitizers.
(2) Self-containerized baits placed in areas not accessible to students.
(3) Gel type baits placed in cracks, crevices or voids.
(4) Swimming pool maintenance chemicals used in the care and maintenance of a swimming pool.
§ 128.107. Providing information upon request.
(a) A producer, distributor or other person shall maintain all books and records as required in section 8 of FIFRA (7 U.S.C.A. § 136f). The records shall be made available for inspection and reproduction when requested by the Department.
(b) A pesticide application business, pesticide dealer or person who handles, distributes, stores, transports, or applies any pesticide shall upon request provide to the Department, information about the pesticides including brand name, EPA registration number and active ingredients.
(c) A pesticide application business, pesticide dealer or person who handles, distributes, stores, transports or applies pesticide shall in an emergency upon request immediately provide to medical personnel information about the pesticides involved including brand name, EPA registration number and active ingredients.
Subchapter F. PESTICIDE
HYPERSENSITIVITY REGISTRY§ 128.111. Registry.
* * * * * (c) [A pesticide] Pesticide-hypersensitive [individual] individuals who [wants] want to be on the registry shall provide to the Department [his] their name and primary residence including street address, city, state, zip code, county, daytime telephone number and nighttime telephone number. Each individual shall also provide an alternate telephone number where notification information can be conveyed. Individuals may also provide secondary locations, addresses and associated telephone numbers to be maintained as part of their listing. An individual submitting a request for listing less than 2 months preceding the effective date, as described in subsection (e), may not be included on the current registry with that effective date, but will be included in the next registry.
(d) To remain on the registry, an individual shall notify the Department annually during the month of [January] October of the individual's intent to remain on the registry for the next 12 months. Medical verification will not be required for this renewal.
(e) The Department will [mail] distribute the current registry to each licensed commercial and public pesticide application business on or before the effective dates of March 1, [June 1, September 1 and December 1] and July 15 of each year. [An individuals] Individuals will not be considered officially included on the registry unless [his name appears] their names appear on the current registry.
§ 128.112. Notification of hypersensitive individuals.
(a) General. Prior to a pesticide application being made by a commercial or public pesticide application business the following conditions shall be met:
* * * * * (4) Notification shall be made by telephone, or personal contact or certified mail or if available, electronic mail or facsimile.
(i) Notification requirements are met [if the information is placed on a telephone answering device activated by calling the registrant's telephone number], through constructive notification by contacting the hypersensitive person's daytime or nighttime listings in the register or if the information is given to an adult contacted by dialing the [daytime, nighttime or] alternate telephone number.
(ii) If notification cannot be made after at least two telephone contact attempts, notification may be made by placing the written notification information on the front door of the listed residence or secondary location listed in the registry within 500 feet of the application site 12 to 72 hours prior to the application.
(iii) A record shall be kept of every [telephone] contact and contact attempt made under this paragraph.
(b) Exceptions. The following types of application do not require notification under this section:
(1) An application of a pesticide within a [single family residential] detached structure not listed as a secondary location.
* * * * * (4) An application of a pesticide to a tree or utility pole by means of injection. [Prior notification requirements contained in § 128.83 (relating to ornamental or turf application) remain applicable.]
* * * * * (6) Application of a pesticide in the care and maintenance of a swimming pool.
(c) Recordkeeping. A record of the notification information required under this section, including the time and method of notification, shall be made within 24 hours following the application and maintained for at least 3 years and shall be made immediately available to the Department upon request [or to medical personnel in an emergency].
[Pa.B. Doc. No. 09-1780. Filed for public inspection September 25, 2009, 9:00 a.m.]
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